United States District Court, M.D. Tennessee, Nashville Division
ORDER & MEMORANDUM OPINION
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion to Set Aside Order
Dismissing Case and To Reconsider Motions to Dismiss. (Doc.
No. 30). For the reasons provided below, the Court
DENIES Plaintiff's Motion.
filed this action concerning real property located at 5524
Oak Chase Drive, Antioch, Tennessee, in Davidson County
Chancery Court on August 15, 2017. (Doc. No. 1-1). Plaintiff
asserted claims of wrongful foreclosure, breach of contract,
and violations of the Fair Debt Collection Act and Tennessee
Consumer Protection Act. (Id.). Defendant JP Morgan
Chase Bank removed the action to this Court (Doc. No. 1), and
filed a motion to dismiss on November 7, 2017. (Doc. No. 17).
Two days later, Plaintiff filed a Joint Motion to Continue
Initial Case Management Conference, citing Defendant
Chase's pending motion to dismiss as the reason for
seeking the continuance. (Doc. No. 19).
Wilson & Associates also filed a motion to dismiss on
November 13, 2017. (Doc. No. 21). Plaintiff failed to respond
timely to either Defendants' motion to dismiss, and on
December 22, 2017, the Court entered an Order dismissing with
prejudice Plaintiff's claims against Defendants Chase and
Wilson & Associates. Plaintiff thereafter filed this
motion to set aside the Court's Order dismissing the
case, citing Fed.R.Civ.P. 60(b)(1) and counsel's neglect
and mistake in confusing multiple motions to dismiss. (Doc.
No. 30, 30-1).
60(b)(1) provides that relief from a final judgment, order,
or proceeding may be granted due to “mistake,
inadvertence, surprise, or excusable neglect.”
Fed.R.Civ.P. 60(b)(1). In determining whether to grant relief
under Rule 60(b)(1), the Sixth Circuit has stated that it
“is intended to provide relief in only two situations:
(1) when a party has made an excusable mistake or an attorney
has acted without authority, or (2) when the judge has made a
substantive mistake of law or fact in the final judgment or
order.” Walsh v. State Farm Fire and Casualty
Company, 2017 WL 3531458, at *3 (M.D. Tenn. Aug. 17,
2017) (quoting United States v. Reyes, 307 F.3d 451,
455 (6th Cir. 2002)).
“relief under Rule 60(b) is circumscribed by public
policy favoring finality of judgments and termination of
litigation, ” the party seeking relief must establish
its grounds by clear and convincing evidence. Info-Hold
v. Sound Merch. Inc., 538 F.3d 448, 454 (6th Cir. 2008)
(quoting Blue Diamond Coal Co. v. Trs. of UMWA Combined
Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001)). Relief
is not available when the excusable neglect is premised on
attorney error. U.S. v. One Men's Rolex Pearl Master
Watch, 357 Fed.Appx. 624, 627 (6th Cir. 2009) (citing
McCurry v. Adventist Health System/Sunbelt, Inc.,
298 F.3d 586, 594 (6th Cir. 2002)). Unfortunately for
clients, they “must be held accountable for the acts
and omissions of their attorneys.” B&D Partners
v. Pastis, 2006 WL 1307480, at *1 (6th Cir. May 9, 2006)
(quoting McCurry, 298 F.3d at 595).
claims that she made a purposeful decision not to respond to
Defendant Wilson & Associates' motion to dismiss, and
mistakenly failed to respond to Defendant Chase's motion
to dismiss. (Doc. No. 30 at 2). Plaintiff's counsel filed
an unsworn declaration explaining that he confused the two
motions to dismiss “given their close proximity in
timing and only took notice of the motion filed by Wilson
& Associates, ignoring the motion filed by JP Morgan
[Chase].” (Doc. No. 30-1).
response, Defendant Chase points to the parties' Joint
Motion to Continue Initial Case Management Conference (Doc.
No. 19), which was filed by Plaintiff two days after
Defendant Chase filed its motion to dismiss, and requested
that the Court delay the initial case management conference
until Chase's pending motion to dismiss was resolved.
(Doc. No. 33 at 2). Defendant Chase argues that
Plaintiff's failure to timely respond to a dispositive
motion constitutes inexcusable negligence and is insufficient
to set aside an order of dismissal under Rule 60(b)(1).
(Id. at 3).
Court finds that Plaintiff has not established the existence
of mistake, inadvertence, surprise, or excusable neglect to
justify her failure to respond to either of Defendants'
motions to dismiss. Under the local rules for the Middle
District of Tennessee, a party must respond to a motion to
dismiss within fourteen days after service of the motion.
M.D. Tenn. L.R. 7.01. In this case, far more than fourteen
days passed between the filing of Defendants' motions to
dismiss and the Court's Order granting the motions. The
record does not indicate that Plaintiff requested an
extension of time to respond to the motions or somehow failed
to receive notice that the motions were pending. To the
contrary, Plaintiff acknowledged her receipt of Defendant
Chase's motion in the parties' Joint Motion to
Continue Initial Case Management Conference. (Doc. No. 19).
The only justification Plaintiff provides for her failure to
respond is that her attorney confused the various motions
filed by Defendants, but that neither she nor her attorney
intended not to respond timely to Defendant Chase's
motion. This reasoning, however, is insufficient to set aside
the dismissals. As the Sixth Circuit repeatedly has held, the
failure to respond timely to a dispositive motion or to
request an extension of time to file a response is
inexcusable neglect. See One Men 's Rolex Pearl
Master Watch, 357 Fed.Appx. At 627; B & D
Partners, 2006 WL 1307480, at *1; Cacevic v. City of
Hazel Park, 226 F.3d 483 (6th Cir. 2000). While it is
certainly unfortunate for Plaintiff that her attorney
apparently confused the various motions to dismiss, Plaintiff
“voluntarily chose [her] attorney in this matter, and
[she] is bound by his acts and/or omissions.” Lyons
v. Mazda American Credit Co. in Franklin, Tenn., 2005 WL
2335355, at *2 (E.D. Tenn. Sept. 23, 2005).
foregoing reasons, the Court concludes that Plaintiff has not
established that her failure to respond to Defendants'
motions to dismiss was the result of mistake, inadvertence,
surprise, or excusable neglect under Rule 60(b)(1).
Accordingly, Plaintiff's Motion to Set ...